Davies on Why EU Legal History Matters

American University history professor Bill Davies talks about applied legal history in his article "Why EU Legal History Matters."  This is part of the American University International Law Review's symposium on "EU Legal Histories."  Cribbing a little from Davies' essay, which talks about the papers in the symposium:

[Michelle Egan's Toward a New History in European Law: New Wine in Old Bottles?] highlights a particularly important set of issues that historians must address if their findings are to find a foothold in the work of other disciplines. Foremost among these is the need for the new historical studies to “embrace bigger causal questions of theoretical and historical interest such as the relationship of law to contemporary democracy, the rights and conceptions of citizenship, the relationship of law to market capitalism, and the issues of internationalism, sovereignty, and legal pluralism.” Hunkering down into the silos of specialized, case- or period-specific studies, as has been the case in much of the New History scholarship to date, precludes the possibility of writing a history of European law as part of a broader “administrative, regulatory, and judicial realm” with a greater relevance for the large number of scholars who understand law in this way. ...

If making the New History relevant and useful to our political science and legal scholar colleagues comes potentially at the cost of undermining the hoped-for objectivity and inherent curiosity in the narrative, is this a price worth paying? How can we write a history of EU law that retains the features of “pure” history, yet at the same time produce narratives that are applicable and able to respond to the questions of fundamental importance raised by scholars like Egan, Pollack, and Bignami? Perhaps there is then a strong need for the New Historians to self-reflect a little more and engage with the theoretical assumptions in their own field—legal history—than necessarily being driven by concerns from outside the discipline?

Read the rest of Davies' article here and the entire symposium here.

Comments

[MacK]

I looked at some of the articles with curiosity. My overall impression is that they gave far too much credit to the Legal Service in the development of EU law and far too little to the Council and the various directorates (only the legal service could be expected to deploy terms like teleological by the way.)

If "legal history" is to be key to legal construction in the EU, a vital period is passing right now, in that many of the negotiators of the various iterations of the treaty (Coal & Steel Community -> Treaty of Rome -> Single European Act -> Maastricht Treaty -> Treaty of Amsterdam -> TFEU, plus all the protocols and side agreements) are retired, elderly, dying or already dead (a least one was blown up by the Red Brigade terrorists in Germany.) A tremendous amount of the negotiation was in person between senior diplomats rather than politicians, and a lot of the reasons why provisions were written as they now appear may be lost. There is a lot of juicy detail (for example, which diplomat announced to his astonished peers (and of which politician) "did you know, my foreign secretary is a prize shit!" and what was the topic that statement related to?)

So I do think this is a useful subject - it would could in a few decades avoid the ECJ engaging in the quasi-seances necessary in the US to divine original intent. I also think that it is an urgent one - time is running out to capture much of the history.